Stand-off over contract after Metrorail workers score CCMA win

Carin Smith

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Despite an arbitration award by the Commission for
Conciliation, Mediation and Arbitration (CCMA) – which ordered the Passenger
Rail Agency of SA (Prasa) to pay about R35.5m to almost 200 of its workers –
the matter has still not been resolved, an attorney involved has said.

Prasa – trading as Metrorail Western Cape – has not yet paid
the first instalment, as it was ordered to in terms of the arbitration award, says
Tzvi Brivik, the attorney acting on behalf of some of the workers.

The workers were awarded the payment thanks to amendments in
labour law that mean an employer may employ a worker on a fixed-term contract
or successive fixed-term contracts for longer than three months only under
certain circumstances. They may not be treated less favourably than a
permanently employed worker doing similar work unless there is a justifiable
reason.

The applicants had been employed on a series of fixed-term
contracts prior to January 1, 2015 and did not sign another contract after this
time. Although they received the same basic remuneration as their permanent
peers, they wanted the same benefits and bonuses.

Brivik told Fin24 that Prasa had presented to each of his
clients a contract of employment for signature.

However, his clients had not signed these contracts because
the commencement date recorded in the agreement was August 1, 2018 – when,
according to Brivik, many of them had been employed for three years or more
already.

"This is significant as most of
our clients have been employed from at least 2015 if not prior to that date,"
he said.

Outstanding
agreements

"Prasa has a progressive leave
policy, so if no recognition of their previous years of service is provided for,
they will lose out on that benefit as well as the salary incremental
increases."

Furthermore, Brivik says, the contract
of employment stipulates that Prasa is a 24-hour, seven-day operation, while
his clients were employed to work six days a week and were not employed on a
Sunday.

Prasa has indicated that it will
provide an undertaking or guarantee that his clients' working hours and rosters
will remain unaltered, but Brivik says he has not yet received that undertaking
or addendum to the contracts of employment.

As for bonus pay, although the amount
payable in terms of the award includes provision for a bonus, as it is an
employment benefit, there is a substantial difference between the salaries
which his clients were being paid and those which they will be paid in terms of
the award, Brivik says.

Lastly, the commencement salary has not
been agreed upon. "Although we have had discussions with Prasa’s representatives and certain
undertakings had been provided, we have still not received the addendum to the
contracts of employments which were to confirm that our clients' working hours
would remain unaltered and confirmation that the salary slips will record their
actual commencement dates with Prasa," Brivik told Fin24.

Intimidation?

"Prasa also has reserved its right
to review the arbitration award, which it is entitled to do within six weeks of
date of the award."

Metrorail spokesperson Riana Scott told
Fin24 that a large number of the employees had already signed their new
employment contracts.

These differ from fixed-term contracts
in that they include benefits.

Others have exercised their right to
negotiate via legal counsel and have not yet signed.

Fin24 asked her about allegations that
Prasa is threatening the workers to sign the new contracts.

"We are unaware of any threats to
fire or intimidate individuals and take such allegations very seriously.

"We encourage employees to report
and substantiate such attempts for us to investigate," she said.